Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/12

 The court held that the "Plaintiff's first publication of AJE on the Internet, an act tantamount to global and simultaneous dissemination of the work in question, constituted "publication" in the United States and around the world". Court accepted that Moberg v 33T is "the only other published opinion that has addressed this particular issue", but rebutted Justice Hillman's reasoning in Moberg v 33T: "There can be little dispute that posting material on the Internet makes it available at the same time – simultaneously – to anyone with access to the Internet. There is nothing in the text of the statute to suggest that Congress intended to except works published on the Internet from the phrase "first published … simultaneously" or that certain works should be excluded from the definition of "United States work" based solely on the manner in which they are published."

The court continued: "Judge Hillman's objections to the proposition that publication on the Internet constitutes simultaneous global publication for copyright purposes are policy-driven. They reflect a deference to certain goals of the Berne Convention at the expense of clear statutory language."

The court found no need to "spend much time examining the interrelationship between U.S. copyright law and the Berne Convention because a simpler approach is available and dispositive". In conclusion on this point, it stated: "We respectfully decline to follow the reasoning of Moberg. As indicated in our prior Order, Judge Hillman's contextual and policy-driven analysis is reasonable and sound but is, in our opinion, wholly untethered to the actual statutory and treaty language that governs this dispute."

The court's conclusion in Kernel v Moseley that a work created outside of the United States, uploaded in Australia and owned by a company registered in Finland was nonetheless a "United States work" by virtue of its being published online is somewhat concerning. Taken to its logical conclusion, this reasoning would hold every work first published online to be a "United States work" requiring registration before an action for infringement can be commenced in the United States. Arguably, this stretches the application of U.S. copyright law too far – to works with only tenuous connections to the United States – and draws into question the United State'sStates' [sic] compliance with Article 5(2) of the Berne Convention which prevents countries from imposing formalities on the exercise of rights with respect to foreign works.

In this part, we propose a limiting principle for reading the section 101 definition of "United States work". We argue that a broad interpretation of "United States work" results in the extraterritorial application of U.S. copyright law at the designation stage – i.e. at the point of deciding whether or not a work should be bound by U.S. copyright formalities. We believe that a narrower reading of "United States work" accords with U.S. jurisprudence supporting a principle of territoriality in legislative